Reproduced with permission from Richard Falk and David
Krieger, eds., International Law and the Quest for Security
(Santa Barbara: Nuclear Age Peace Foundation, 2003)

President Clinton signed the Rome
Statute of the International Criminal Court (ICC) at the end of his term, on
December 31, 2000, hours before the period for signature expired. But he
also stated, “I will not, and do not recommend that my successor submit the
treaty to the Senate for advice and consent until our fundamental concerns
are satisfied.”

Clinton’s
schizophrenic act reflected the US approach to the treaty’s negotiation. On
the one hand, the State Department under Secretary Madeleine Albright
strongly supported creation of the ICC. At the negotiations in Rome in the
summer of 1998, the State Department delegation led by David Scheffer,
Ambassador-at-large for War Crimes Issues, made numerous and important
positive contributions to the Statute’s due process provisions and
definitions of crimes. However, at the same time there was strong resistance
from the Department of Defense to the possibility of US soldiers and
policymakers being prosecuted by the Court under any circumstance. In the
end, the United States was among seven countries to vote against adoption of
the Statute, along with China, Libya, Iraq, Israel, Qatar and Yemen.

Under the Rome Statute
as adopted,[1]
individuals may be prosecuted for genocide, crimes against humanity, and war
crimes, as well as the crime of aggression, if and when a definition of that
crime is adopted, when: 1) the alleged crime occurred on the territory of a
state party; 2) the alleged crime was committed by a national of a state
party; or 3) the matter is referred to the Court by the UN Security Council.
Article 5 provides that the Court’s jurisdiction is “limited to the most
serious crimes of concern to the international community as a whole.”
Article 8 reinforces this limitation, providing for “jurisdiction in respect
of war crimes in particular when committed as part of a plan or policy or as
part of a large-scale commission of such crimes.” Following ratification of
the Statute by 60 states, in July 2002 it entered into force. Judges and a
prosecutor were selected in the first half of 2003, and the Court is
expected to be fully operational by the end of 2003.

Analysis of US
Objections

The grounds for US
criticism of the Court shifted over the years, but they were put sharply
into focus on May 6, 2002 when the Bush administration notified the United
Nations that the United States does not intend to ratify the Statute. By
taking this unprecedented step, the administration sought to terminate the
US obligation under customary international law not to engage in acts
contrary to the Statute’s “object and purpose.” On the same date, Under
Secretary of State for Political Affairs Marc Grossman outlined five reasons
for US opposition, discussed below.[2]

1)The
Rome Statute bestows unchecked power on the Court, especially on a
self-initiating prosecutor, usurping the role of the Security Council.

The original plan for
the ICC had been of a permanent institution handling matters referred by the
Security Council and, subject to significant restrictions on the Court's
jurisdiction, by states. The eventual acceptance of a relatively broad scope
for the Court's jurisdiction diluted the importance of the Security Council
in the ICC structure. Further, the inclusion, as the negotiations matured,
of a power of the prosecutor to initiate cases on his or her own power gave
added weight to the ICC as an institution independent of both the Security
Council and states.

But it is also the
case that the Statute contains numerous checks on the Court’s prosecutor and
judges. Among them: Under the principle of complementarity, the Court has no
jurisdiction when an alleged crime has been investigated or prosecuted in
good faith within a national legal system. The prosecutor’s decision to
investigate a case is subject to approval of a Pre-Trial Chamber of the
Court. The prosecutor and judges are ultimately answerable to the Assembly
of States Parties.

The Statute also gives
a significant role to the Security Council. In addition to its power to
refer situations to the Court, under Article 16 the Security Council has the
power to postpone investigations or prosecution for 12-month periods based
on its authority under the UN Charter to maintain international peace and
security. The decision to go no further in giving the Security Council
control over the Court's docket reflects an unwillingness to concentrate
undue power in a highly unrepresentative body featuring the World War II
victors as its five permanent, veto-wielding members.

2)The
Court dilutes the authority of Security Council, especially with regard to
the crime of aggression yet to be defined.

Given its doctrine of
preemptive war, this is certainly a theoretical concern for the Bush
administration. There was virtually unanimous opposition among UN General
Assembly countries to the administration’s execution of that doctrine in the
war on Iraq. Most states characterized the war as a violation of the UN
Charter.

Practically speaking,
though, the crime of aggression cannot be prosecuted unless and until the
Statute is amended to set forth its elements. Moreover, Article 5 provides
that the amendment “shall be consistent with the relevant provisions of the
Charter of the United Nations.” In other words, the ICC must defer to the
primary role of the Security Council in maintaining international peace and
security, including its determination under Article 39 of the Charter as to
whether an “act of aggression” has occurred. In addition, procedures to
amend the Statute are onerous, requiring two-thirds of the treaty’s state
parties to vote for an amendment to be adopted, after which seven-eighths
must ratify the amendment before it comes into force. Further, a state party
that does not ratify the amendment is not bound by it.

3)The
Court threatens the sovereignty of the United States because it could try US
nationals though the United States has not agreed to be bound by the Rome
Statute. “While sovereign nations have the authority to try non-citizens who
have committed crimes against their citizens or in their territory, the
United States has never recognized the right of an international
organization to do so absent consent or a UN Security Council mandate.”

This argument runs
contrary to basic principles of international law. States can and do try
anyone for crimes committed within their territory; why can they not
delegate that right to an international court? There is no authority to say
they cannot do so. Indeed, under the Lotus principle, traditionally
a foundational element of international law, states may do as they wish
unless they contravene an express prohibition.

4)The ICC
undermines the principled use of force: “[T]he ICC could have a chilling
effect on the willingness of states to project power in defense of their
moral and security interests. This power must sometimes be projected. The
principled projection of force by the world’s democracies is critical to
protecting human rights – to stopping genocide or changing regimes like the
Taliban, which abuse their people and promote terror against the world.”

Other states do not
see the ICC as an obstacle to participating in what they regard as
legitimate uses of force or in peacekeeping. Notably, the United Kingdom,
which joined with the United States in military operations in Yugoslavia,
Afghanistan, and Iraq, is a strong supporter of the ICC. A group of 60 or
so “like-minded” states, including Canada, European and African countries,
and many Latin American and Asian countries, were the engine for creation of
the ICC. Along with civil society organizations, they envisioned the Court
primarily as a permanent and global institutional capability to address mass
atrocities – crimes against humanity, genocide, and large-scale war crimes -
of the kind that occurred repeatedly in the 20th century, during
World War II and then in Cambodia, Bosnia, Rwanda, Sierra Leone, etc.
They did not see its central purpose as the fine-grained regulation of the
conduct of warfare. On the other hand, they were not willing to undermine
its legitimacy by restricting its potential application to all states.

It is true that the
ICC could be a factor, not necessarily a decisive one, pushing the United
States and other countries towards multilaterally approved uses of force.
That would build legitimacy which in turn could make prosecutions less
likely. Such an effect of the ICC would be welcome.

That the Statute
represents an authoritative codification of existing legal constraints on
the conduct of warfare could also conceivably affect US military operations.
For example, it could encourage more use of ground troops and less bombing.
Such a change would entail greater risk to US personnel but lower the risk
to civilian populations.[3]
Again, this would be a positive outcome.

The Bush
administration’s determination to forestall any ICC effect on US military
actions is demonstrated by its outrageous maneuver in the Security Council
in July 2002. By threatening vetoes of peacekeeping operations, the United
States forced adoption of resolution 1422 shielding personnel of non-ICC
party states engaged in “UN authorized or established operations” from
prosecution for a year. The resolution was widely characterized as applying
to peacekeeping, for instance the mission in Bosnia, but by its terms it
would also apply to UN approved military actions like the first Gulf War.

The ostensible basis
for the resolution was Article 16 of the Statute: “No investigation or
prosecution may be commenced or proceeded with under this Statute for a
period of 12 months after the Security Council, in a resolution adopted
under Chapter VII of the UN Charter, has requested the Court to that effect
….” However, in the context of the Statute, notably Article 13, Article 16
concerns specific investigations or prosecutions, not an entire category.
The rationale for Article 16 was that the Security Council could request
deferral of an investigation or prosecution if that would facilitate its
resolution of a conflict or other threat to international peace and
security. Resolution 1422 thus ignores the intent of Article 16, and was
widely denounced by states and civil society groups for that and other
reasons.

5)The ICC
could complicate US military cooperation with friends and allies who will
have a treaty obligation to hand over US nationals to the Court.

The United States is
dealing with this “problem” by forging bilateral agreements in which
individual states agree not to turn US nationals over to the Court. The
United States claims that such agreements are allowed by Article 98 of the
Statute, which provides in relevant part: “The Court may not proceed with a
request for surrender which would require the requested State to act
inconsistently with its obligations under international agreements pursuant
to which the consent of a sending State is required to surrender a person of
that State to the Court ….”

According to the
American NGO Coalition for the ICC, the intent of Article 98 was to resolve
the contradiction which could be faced by states which have a Status of
Forces Agreement with the United States requiring soldiers or other official
US personnel accused of certain crimes to be turned over to the United
States.[4]
However, the bilateral agreements proposed by the United States bar the
surrender of any person, not only official personnel, to the ICC.
More fundamentally, the agreements - which the United States is now seeking
all over the world, not only with longtime military allies - are contrary to
the intent of the Statute as a whole that persons accused of committing
crimes in territories of states parties may be prosecuted by the ICC.[5]

The
Broader Context

As noted above, the
primary impetus for the establishment of the ICC was to institutionalize the
capability to prosecute and deter atrocities of the kind that occurred in
Bosnia, Rwanda and Cambodia. Along the way, though, resistance grew to
mirroring in the ICC the existing structure of world power/governance
centered on the Security Council. This development was somewhat of a
surprise, and the Security Council still plays a significant role in ICC
procedures, just not the predominant role originally envisaged by the United
States and other countries.

The impulse to
challenge the existing framework of global politics was also manifest in the
effort to make employment of nuclear weapons a crime.[6]
This initiative was pushed largely by the Non-Aligned Movement, not by the
like-minded states shepherding the drafting of the Statute. Eventually only
the 1925 Geneva Protocol prohibition of employment of poisonous gases and
analogous materials was included, along with prohibitions on use of poison
and poisoned weapons and expanding bullets.[7]
Fortunately, the Geneva Protocol prohibition is understood to apply to all
chemical weapons, and arguably also applies to biological weapons. Use of
nuclear weapons and other weapons of mass or indiscriminate destruction,
e.g. landmines, not expressly proscribed by the Statute remains subject
to its general provisions, notably those criminalizing attacks on civilians
and attacks on military objectives disproportionately causing civilian loss
of life and injury.[8]
The Statute also provides that inherently indiscriminate weapons which are
the subject of a comprehensive prohibition may be added, by means of an
amendment to the Statute, to the list of weapons whose use is expressly
prohibited.[9]
That points the way towards inclusion of nuclear weapons, landmines, and
other weapons of mass or indiscriminate destruction at a later date.

The deemphasis of the
role of the Security Council and the struggle over nuclear weapons
manifested the interest of many countries, in varying degrees of intensity,
in creating a Court that in part would serve as an institutional check on
the world’s most powerful countries, especially the United States. Another
indication of that interest was the drive to include aggression among the
crimes over which the ICC will eventually have jurisdiction. The dynamic is
also reflected in the pattern of support for the ICC. While European and
other middle power countries and many developing countries have strongly
backed the Court, the world’s most populous countries, China, India, the
United States, Indonesia, and Russia, have not even become parties to the
Statute (Russia has signed it).

Thus opposition to the
ICC is not limited to the United States. Other countries similarly see
potential for containment of their “projection of power.” Some facing the
possibility of internal strife and instability are also concerned about
interference in their domestic affairs. However, US opposition stands out,
because it reflects an anti-multilateralist ideology dominant in no other
major country. Increasing support for the ideal of an international rule of
law system is found across the world, especially but not only in Europe, and
the United States is allied with countries in Europe and Asia which are
deeply committed to that ideal. Yet in the United States a school of thought
has risen to the fore that is strongly and self-consciously opposed to
global legal regimes. Multilateral agreements rejected in the last few years
by the United States in addition to the Rome Statute include the
Comprehensive Test Ban Treaty, the Kyoto Protocol, the Landmines Treaty, the
verification protocol for the Biological Weapons Convention, and disarmament
commitments under the Nuclear Nonproliferation Treaty.[10]

What is it about such
regimes that key elements within the US government find objectionable? Most
of the overt objections to the ICC are discussed above.,[11]
They and others are either without merit or are not decisive. Regarding
regimes controlling weapons of mass destruction, the stock answers come fast
and furious: the regimes are violated by “rogue” states and compliance
cannot be verified or enforced. As in the case of the ICC, the arguments do
not withstand scrutiny, nor are they really expected to, because they are
stand-ins for the real point applicable to all such regimes: that the United
States should not sacrifice its sovereignty and its position as the world’s
most powerful country by subjecting itself to regulation by global laws and
institutions.

In a telling
demonstration of its contempt for treaties, the Bush administration
appointed John Bolton as the Under Secretary of State for Arms Control and
International Security. Bolton believes that international law is not really
law because it lacks an enforcement framework like that of national legal
systems, with their courts and police. According to Bolton, “[T]here is no
reason to consider treaties as ‘legally’ binding internationally, and
certainly not as ‘law’ themselves.”[12]

Bolton's corrosively
skeptical view was not accepted in the early days of the United States, when
it relied upon international law as a shield against other, more powerful
states. One of the leading framers, John Jay, criticized proponents of the
position that treaties should not, as the Constitution provides, be part of
the “supreme law of the land.” According to Jay: “These gentlemen would do
well to reflect that a treaty is only another name for a bargain, and that
it would be impossible to find a nation who would make any bargain with us,
which should be binding on them absolutely, but on us only so long
and so far as we may think proper to be bound by it.”[13]
Nor was Bolton’s position on international law the prevailing view in the
aftermath of World War II, when the United States took the lead in the
creation of an elaborate legal framework governing global politics and
economics, from the UN Charter to the Bretton Woods Agreements.

Bolton’s analysis of
the deficiencies of international law would seem to argue for acceptance of
the ICC, to contribute to a more effective structure of international
enforcement. However, his primary concern is preserving and expanding US
power, not building a better international system.

Underlying the various
arguments advanced to justify present-day US opposition to the Rome Statute
and other treaties is a belief that the United States is an “honorable”
country that does not “need treaty limits to do the right thing.”[14]
This belief reflects and reinforces the United States' dominant position in
the world: US actions are intrinsically right, and the United States should
exercise its power accordingly. It recalls the ideology of "Manifest
Destiny," and is at odds with the very notion that the rule of law is
possible in global affairs.

If the United States
remains on this path, the outcome will be a frightening international order
based more on the rule of force than the rule of law, with the United States
the primary wielder of force. Such an order in the end will prove incapable
of addressing threats to US and global security. A far better course would
be to seize the present opportunity to nurture an emergent international
legal order, with the ICC as a central institution, that holds the promise
of delivering both justice and security.

John Burroughs is executive director of the
Lawyers’ Committee on Nuclear Policy and adjunct professor of international
law at Rutgers Law School, Newark. He is author of The Legality of Threat
or Use of Nuclear Weapons: A Guide to the Historic Opinion of the
International Court of Justice (1998), and co-editor of Rule of Power
or Rule of Law? An Assessment of U.S. Policies and Actions Regarding
Security-Related Treaties
(2003).

[1] July 17,
1998. Available online at www.iccnow.org/romearchive/documentsrome.html.
See generally Pam Spees, “Rome Statute of the International Criminal
Court,” in Nicole Deller, Arjun Makhijani, and John Burroughs, eds.,
Rule of Power or Rule of Law? An Assessment of U.S. Policies and Actions
Regarding Security-Related Treaties (New York: Apex Press, 2003).

[2] Remarks
at the Center for Strategic and International Studies, Washington, D.C.,
available online at www.amicc.org/usinfo/administration.html.

[3] See
Andrew Lichterman and John Burroughs, “War Is Not the Path to Peace: The
Need for Stronger International Legal Standards to Prevent War,” October
24, 2002, online at www.wslfweb.org/docs/iraqlaw2.htm.

[5] See
Human Rights Watch, “United States Efforts to Undermine the
International Criminal Court: Article 98 Agreements,” August 2, 2002,
online at www.amicc.org/docs/hrw20020802.pdf.

[6] See John
Burroughs and Jacqueline Cabasso, "Confronting The Nuclear-Armed States
In International Negotiating Forums: Lessons For NGOs," 4 International
Negotiation (No. 3, 1999) 457-480, at 471-472.

[10] For a
survey of this behavior, see Rule of Power or Rule of Law?,
supra note 1.

[11] For
analysis of other objections, including that the ICC does not have
adequate due process protections and that “truth and reconciliation”
processes may be preferable to prosecution of international crimes, see
commentary by the American NGO Coalition for the ICC at www.amicc.org/usinfo/administration.html.

[12] John
Bolton, “Is There Really ‘Law’ in International Affairs,” 10
Transnational Law and Contemporary Problems (Spring 2000) 1, at 4.